SREEDHARA MENON Vs. KARAPPAN

JUDGEMENT

(1.) The respondent in this Second Appeal obtained a decree against the appellant and in execution purchased properties belonging to the latter on August 30, 1956, and the sale was posted for confirmation on October 3, 1956. The Travancore - Cochin Indebted Agriculturists Relief Act, 1956 (Act III of 1956) came into force on September 10,1956. The Appellant made an application to the execution court on September 25, 1956, which contained two prayers, first, that the sale may be set aside and second, that the appellant may be permitted to discharge the decree debt in instalments under Act III of 1956. The execution Court held by order dated October 15, 1956 that the sale having been held after permitting the respondent decree holder to set off the decree amount against the purchase money, the decree debt has been wiped out and that therefore the appellant could not pay under Act III of 1956. On the same day, by a separate order, the execution Court confirmed the sale. On appeal being taken against the former rejecting the appellant's application, the Subordinate Judge dismissed the same and hence this Second Appeal.

(2.) It was contended for the appellant, that though permission was granted to the respondent for set off as aforesaid, so long as the sale was not confirmed, the decree remained unsatisfied and could be discharged under Act III of 1956. This contention derives considerable support from the rule laid down by the Privy Council in Raghunandan Prasad Singh v. Commissioner of Income Tax, Bihar and Orissa ( AIR 1933 PC 101 ) which no doubt related to a case under the Income Tax Act, but which is based on the provisions of the Civil Procedure Code and is of equal application in a case like the present. The rule was so applied by the Madras High Court in Nataraja Pillai v. Rangaswami Karamundar ( AIR 1942 Mad. 119 ) a case of scaling down the debt under S.19 of the Madras Agriculturists Relief Act, 1938, where a sale was already held, but had not been confirmed. In the present case, however, the appellant is confronted by another difficulty, in that the sale was confirmed on October 15, 1956, and no appeal was taken against the order of confirmation, the appeal taken by the appellant to the Subordinate Judge and this Second Appeal, being directed only against the order dismissing the appellant's application dated September 25, the two prayers in which are both unsustainable, there being no provision in Act III of 1956 to set aside the sale as in Act XXXI of 1958, and no permission being necessary and no application for permission being contemplated by law, all that is essential being, deposits in instalments from time to time. The bar in S.3 of Act III of 1956, so far as it is germane to this case, is against making of an execution application and if before the period of the first instalment, confirmation of the sale was made, however erroneously, it had to be vacated in due course of law. As it was, the appellant took no step to vacate it and made no deposit all these six years. The appellant's stand is, that because of the erroneous order made on his application he could not make the deposits and that the order of confirmation is a nullity. For the reasons given above, I cannot find my way to accept these positions. I therefore come to the conclusion, that after confirmation there was no subsisting debt. This Second Appeal is therefore dismissed with costs.